Thursday, February 6, 2014

Year 174

At this time of year, I like to reflect on the
12 months gone by and take stock of the Treaty relationship. The 174th year of
the Treaty of Waitangi saw several important government reviews that address
matters directly relevant to the Treaty relationship. It was another busy year
in terms of Treaty settlements and some major pieces of settlement legislation
were introduced. A well-publicised decision in the Supreme Court
re-strengthened Treaty principles. And the New Zealand legal system shows signs
of beginning to operate in a more bicultural way.

The year in reviews

2013 seemed to be a year in which a number of
important elements of the Treaty relationship were under review in some way or
other.

The
Constitution Conversation

Perhaps most significantly, the Constitutional
Advisory Panel's report was released. The Panel's terms of reference
specifically directed it to consider
two areas that specifically relate to Māori:

The Crown-Māori
relationship (essentially, the place of the Treaty of Waitangi);

andMāori
electoral representation.

The
Panel has recommended that the Government:

continues to affirm the
importance of the Treaty as a foundational document

ensures a Treaty education
strategy is developed that includes the current role and status of the Treaty
and the Treaty settlement process so people can inform themselves about the
rights and obligations under the Treaty

supports the continued
development of the role and status of the Treaty under the current arrangements
as has occurred over the past decades

sets up a process to
develop a range of options for the future role of Treaty, including options
within existing constitutional arrangements and arrangements in which the
Treaty is the foundation

invites and supports the
people of Aotearoa New Zealand to continue the conversation about the place of
the Treaty in our constitution.

As I noted at the time the
Panel’s
report was released, I am not sure that this really takes us much further in
the constitutional conversation, though I believe the Panel was always going to
be constrained in its recommendations because of its narrow terms of reference
and its politicized origins.

Note that the far more wide-ranging work being
undertaken by Matike Mai Aotearoa - the independent working group on
constitutional transformation that is being led by Moana Jackson and Margaret
Mutu is continuing. This group has conducted over 200 hui around the country between
2012-2013 and is beginning a round of feedback hui with a meeting at Waitangi
today.

Te Ture
Whenua

Te Ture Whenua Māori Act 1993, which is the key piece of legislation that regulates Māori land, was also the subject of a government review this year. A
four-person panel sought feedback in April 2013 on five key propositions:

Proposition 1:
Utilisation of Māori land should be able to be determined by a
majority of engaged ownersAn engaged owner is defined
as an owner who has actively demonstrated their commitment to their ownership
interest by exercising a vote either in person or by proxy or nominee. Engaged
owners should be able to make decisions (excluding sale or other permanent
disposition) without the need for endorsement by the Māori Land
Court.

Proposition 2: All Māori
land should be capable of utilisation and effective administrationWhere owners are either not
engaged or are unable to be located, an external manageror
administrator may be appointed to manage under-utilised Māori
land. The Māori
Land Court should have a role in approving the appointment and retaining
oversight of external administrators.

Proposition 3: Māori
land should have effective, fit for purpose, governanceThe duties and obligations
of trustees and other governance bodies who administer or manage Māori land
should be aligned with the laws that apply to general land and corporate
bodies. There should be greater consistency in the rules and processes
associated with various types of governance structures.

Proposition 4: There
should be an enabling institutional framework to support owners of Māori
land to make decisions and resolve any disputesDisputes relating to Māori land
should be referred to mediation in the first instance. Where the dispute
remains unresolved following mediation, it may be determined by the Māori Land
Court.

Proposition 5: Excessive
fragmentation of Māori land should be discouraged.Succession to Māori land
should be simplified. A register should be maintained to record the names and
whakapapa of all interests in Māori land, regardless of size.

When originally
established, the panel was due to report to Government by December 2012. These
timelines were extended, but there have been no public announcements on this
matter since submissions closed over six months ago.

TheNew Zealand Māori Council

The Government also initiated a review of the Māori Community Development Act last year. This is a significant piece
of legislation in the context of the Treaty relationship because it is the Act
that governs the New Zealand Māori Council and the Māori Wardens. A discussion paper was released in August 2013
presentingtwo broad options for the future of the New
Zealand Māori
Council:

A new refocused national
Māori organisation – concentrates on social and economic issues
that impact on community development for all Māori;
membership, direction and priorities mandated by the community, with robust and
transparent measures designed to ensure accountability to Māori;
legislation will need to be amended to remove outdated statutory
responsibilities; or

No change –
New Zealand Māori Council continues along with the existing
statutory responsibilities as outlined in the 1962 Act to:

consider and discuss
matters relevant to the social and economic advancement of Māori;

collaborate with
government departments on employment, education, training, housing and health.

The paper also sought feedback on the structure of the New Zealand Māori Council and the roles and responsibilities
of Māori
Wardens and proposals to re-establish Community Officers. Members of the New
Zealand Māori
Council filed a claim with the Waitangi Tribunal alleging that the process that
the Crown had adopted for reviewing this important piece of legislation was in
breach of the principles of the Treaty. In December 2013, the Waitangi Tribunal agreed to convene an urgent hearing to hear some aspects of the New Zealand Māori
Council’s
claim.

Treaty settlements

Not only has this been another busy year for
groups involved in Treaty settlements, but there have also been some major
developments in this area. The number of agreements signed and the progress of
settlement legislation through Parliament gives a clear indication of the work
taking place in this sector. In a summary written for the Māori Law Review of settlement legislation before the House in 2013, I
noted:

Co-governance was a strong
theme in settlement legislation this year. Many bills, especially those dealing with
highly-prized waterways or other natural resources, appear to be drawing on
some of the core ideas from the Waikato River Settlement.
The Ngāti
Hauā
and Ngāti
Koroki-kāhukura
bills directly extend the Waikato River co-management regime. A
number of the bills currently before the House include provision for
co-governance mechanisms, not only between Māori and the Crown, but between two or more Māori
communities. Perhaps the most striking example of the creative possibilities of
co-governance models is the approach adopted in the Te Urewera-Tuhoe Bill. In
that instance, a governance board is established with members appointed by Tūhoe and
the Crown to act on behalf of Te Urewera itself. And there is also provision within that Bill
for other iwi’s
interests within Te Urewera. As this example illustrates, along with many
of the other settlement bills introduced this year, Treaty settlements almost
always need to take account of complex and inter-locking rights and interests.
The settlement legislation this year covers areas such as the Waikato, Rotorua,
and Te Tau Ihu where these inter-locking interests are evident and as more and
more settlements are completed we are beginning to see an increasing amount of ‘cross-referencing’ that
attempts to capture this complexity.

The arrangements in
relation to Te Urewera are amongst the most notable developments in the Treaty
settlement arena. As described in the Māori Law Review summary of the Te Urewera-Tuhoe
Bill, the key mechanisms are as follows:

Te Urewera is declared to
be a legal entity, having all the rights, powers, duties and liabilities of a
legal person. The Bill provides that Te Urewera establishment land will no longer
be vested in the Crown but will instead will be inalienable and vest in Te
Urewera itself. The rights, powers and duties of Te Urewera are to be exercised on its
behalf by a governance body to be established by the Bill, known as Te Urewera
Board. The Board is to provide governance for Te Urewera by undertaking
functions such as preparing and approving a management plan for Te Urewera,
monitoring the implementation of that plan, making bylaws for Te Urewera,
promoting and advocating for the interests of Te Urewera in statutory
processes, and a range of similar activities. The Board will initially consist
of four members appointed by the trustees of Tūhoe Te Uru Taumata and four members appointed
by the Crown. From the third anniversary of the settlement date, the Board will
consist of six members appointed by the trustees of Tūhoe Te
Uru Taumata and three members appointed by the Crown. The chief executive of Tūhoe Te
Uru Taumata and the Director-General of Conservation will be responsible for
the operational management of Te Urewera in accordance with the plan and
priorities adopted by the Board.

Water and State-Owned Enterprises

One of the more
high-profile Treaty-related developments of 2013 came near the start of the
year when in February the Supreme Court issued its decision in New Zealand Māori Council v Attorney-General and dismissed the Māori
Council’s
appeal in relation to the proposed partial privatisation of Mighty River Power.
This meant that the Government could proceed with the sale of shares in Mighty
River Power, but the decision also reinforced Treaty principles.As I noted at the time:

Even though the outcome of
the Supreme Court decision is the same as the outcome of the High Court
decision, the Supreme Court overrules one key aspect of Justice Ronald Young’s
reasoning. Justice Young found that the proposed sale of shares in Mighty River
Power was not subject to an action in judicial review that is based on consistency
with the principles of the Treaty of Waitangi. However, the Supreme Court disagreed, drawing
for support on the approach of the Court of Appeal in the 1987 SOE case:

The Court of Appeal’s
recognition that s 9 stated a fundamental principle guiding the interpretation
of legislation which addressed issues involving the relationship of Māori with
the Crown, must accordingly form the basis of the approach of New Zealand
courts to any subsequent legislation requiring that the Crown act consistently
with Treaty principles. The judgment gives no support to narrow approaches to
the meaning of such clauses. In re-enacting the identical provision to act
consistently with Treaty principles, in the mixed ownership companies
legislation, Parliament’s purpose is that the Treaty provisions in Part
5A carry the broad meaning, and be given the broad application reflected in the
judgments of the Court of Appeal concerning s 9 in the SOE case. The
Parliamentary purpose is clear: s 45Q must receive the same interpretation as s
9 of the State-Owned Enterprises Act has received, particularly from the Court
of Appeal in the SOE case, and also from the Privy Council in New Zealand Māori
Council v Attorney-General (Broadcasting Assets case). Section 45Q brings with it the heritage of s
9 and this Court, reflecting what is the purpose of Parliament, must invest it
with equivalent significance. It is on that basis that we address the arguments
of counsel concerning the legislation.

Consequently, the Supreme
Court determined that decisions in relation to the sale of shares in Mixed
Ownership Model companies can be challenged on the basis of inconsistency with
the principles of the Treaty of Waitangi. This is, I think, an important
re-strengthening of Treaty principles.

Nevertheless, the Court
went on to conclude that, because there was no ‘material impairment’ to the
Crown’s
ability to recognise Māori rights or provide redress, the sale of
shares would not be inconsistent with Treaty principles.

However, I would venture to
suggest that this is not the last we have heard about rights to water.

Steps towards a bicultural legal system?

The past 12 months have also seen some positive
developments in the way that the New Zealand legal system engages with the Māori world.

In December 2013, five candidates were admitted
as barristers and solicitors of the High Court in a ceremony that was, for the
first time, conducted in te reo Māori.

Another first was the enactment of a bilingual
statute. The Mokomoko (Restoration of Character, Mana, and Reputation) Act 2013
gives effect to an agreement
between the Crown and the descendants of the rangatira Mokomoko for the Crown
to obtain both statutory recognition to the free pardon granted to Mokomoko in
1992 and a declaration that the character, mana and reputation of Mokomoko and
his uri (descendants) are restored. Mokomoko was a rangatira of Whakatōhea who
was wrongly convicted of murder and executed in 1866. Hewas
subsequently pardoned in 1992.

As I noted in the Māori Law
Review report on the Bill:

The Māori
Affairs Select Committee supported the request of te whānau a
Mokomoko to amend the bill by having a full Te Reo Māori
translation included. The Select Committee report noted that
translating the legislation before enactment would have the legal impact that
the English and Te Reo Māori versions would be considered equal and the
Committee commented on the positive impact that the dual translation could have
on future legislation.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review